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The photos by official White House photographer Pete Souza are now available to the public on the White House Flickr stream under a new arrangement: in place of the Creative Commons Attribution license used previously, the photos are now identified as "United States Government Works," along with a link to the U.S. Copyright Office page quoting Title 17 of the United States Code:

§ 105. Subject matter of copyright: United States Government works

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

EFF and others had earlier pointed out that the Attribution license — while useful for remixers and fair users — was still a license and not necessary or appropriate for federal government works. Federal government works are not copyrightable, and as such should be treated as works in the public domain: free to use without restriction.

It's great to see that Flickr, which has introduced thousands of people to Creative Commons and the usefulness of alternative licensing options, is once again leading the pack. By removing licensing restrictions for the White House photos they are allowing the public free access to the works they pay for with their tax dollars — an important principal that Flickr deserves credit for upholding.

Today, The Center for Democracy and Technology and EFF are releasing "Open Recommendations for the Use of Web Measurement Tools on Federal Government Web Sites." (Press Release. PDF.) The document recommends repairs to the federal guidelines that regulate the use of cookies and other "persistent tracking technologies" on government websites.

Today, these regulations are problematic: They're both too harshly bureaucratic in some cases and too relaxed in others. They're too harsh because ordinary government webmasters are prohibited from performing even basic traffic analysis without acquiring personal approval from their agency's head — something they say is an insurmountable bureaucratic obstacle in many federal agencies. They're too relaxed because they don’t reach many of the tracking technologies that are in use today. In addition, in the event that the agency head does provide this sign-off, it allows a loophole which can enable the agency to use tracking technologies with almost no oversight or accountability. EFF has recently had first hand experience with this loophole since the White House has still refused to give any explanation, much less provide the actual waiver it recently issued for use of cookies on whitehouse.gov.

As an alternative, CDT and EFF are recommending a sensible way forward: Government webmasters ought to be permitted to use modern analytics tools without agency-head approval, so long as the use of those tools is carefully overseen and meets with specific strict safeguards and requirements.

Many of these safeguards will be familiar to folks who've read EFF's Best Practices For Online Service Providers: Visitor data must be speedily anonymized, and it may not be used for purposes other than traffic analysis. Visitors should be given a clear option allowing them to opt-out of tracking, and agency privacy officers must carefully review and audit the processes. And, importantly, no "agency-head approval" will be sufficient to waive these requirements.

In addition to being smart policy, the adoption of these guidelines would foster smart technology. Current web anaytics systems are notorious for hoarding data irregardless of privacy concerns. The prevailing approach is to collect as much information as possible and store it for as long as possible. To make matters worse, most systems (including the popular Google Analytics) store the data on servers that the web-manager does not own or control, increasing the likelihood that the data will be captured, leaked or misused. Adoption of these recommendations would encourage analytics providers to consider safer and smarter approaches.

The Obama Administration is expected to begin revising federal website policies soon, as part of its "Open Government" initiatives. We hope these recommendations will be incorporated. The result would be a win, both for webmasters seeking data and for citizens seeking privacy.

The MPAA says that ripping from a DVD is always illegal under the DMCA, even if it's done for the purpose of fair use. Since the Copyright Office is empowered to grant three-year exemptions to the DMCA, EFF has proposed a DMCA exemption for noncommercial remix creators.

At last week's hearings, the MPAA stuck by its old argument, saying that remix artists should just camcord off a flat screen TV (!) if they need clips. They even made a video showing how it's done!

After this MPAA demo, Georgetown Prof. Rebecca Tushnet, representing the Organization for Transformative Works, did a great job explaining why this is absurd. I did a YouTube video remixing her testimony with the MPAA camcording video, but here's an excerpt:

What we have here is essentially a digital literacy test and a digital poll tax imposed on fair use. The literacy test, as you may recall, required prospective voters to interpret an often arcane provision of the law. Here, the test proposed is that they understand that a digital file created in one way is illegal, while a similar, albeit degraded, digital file created another way is fine.

Then there’s the poll tax: you have to purchase the proper equipment to create the second digital file. It’s expensive and nonstandard for an individual artist—we were offered the prospect of using a $900 camera, plus a several-hundred-dollar tripod, plus a large flat-screen TV in a large, completely darkened room. The noncommercial artists we represent are often pink-collar workers; $900 is regularly more than a month’s rent for them; it would be a crippling requirement. And they don’t ever get paid for the works they create. This is not an investment for them. This is their free speech; this is how they react to popular culture—addressing it, critiquing it, changing it.

And the poll tax is inherent in the responses from the opponents of an exemption: their argument that camcorders somehow preserve the technology inherently presumes that the camcorder solution is one that won’t be used by fair users and therefore fair uses will be suppressed. To the contrary, the possibility of camcording proves that the proposed exemption will not cause any harm to the opponents. They say camcording is easy and is good enough to watch. In that case, that’s the mode pirates will use. They cannot maintain that camcording is a substitute for fair use clipping and also that the exemption will degrade protection for CSS compared to camcording.

We got rid of the literacy test and the poll tax because they deterred people from participating –people whose voices weren’t heard otherwise. We did this even though some brave people defied the laws and persevered. Some even managed to register and vote. The problem was all the people who didn’t have the time or the energy or the resources to persevere, and all those who looked at the costs and didn’t even bother to try. That’s the problem here.

Libraries Raise Concerns About Google BooksLibrarians submitted a letter to the court considering the Google Book Settlement raising concerns about how Google's plans for digital books will affect privacy and censorship.

">CAIR Defends SavageWhen shock jock Michael Savage was banned from the UK for allegedly hateful comments about muslims, an Islamic group he had previously maligned came to his defense -- on free speech grounds.

Here's what's different about this takedown: NOM's lawyer asked YouTube to restore the video immediately, rather than keeping it off-line for the standard 10-14 business day counternotice period. And YouTube, after doing its own fair use analysis, agreed and obliged.

YouTube's decision is both laudable and perfectly sensible — as we'veoftennoted, there's no need to follow the DMCA safe harbor procedures if the disputed content is a clear fair use and, as a result, there's no risk of liability.

That said, NOM's sudden championship of fair use rights is striking, considering that NOM appears to have sent a slew of impropertakedownnotices of its own recently. The irony is palpable, especially for critics of NOM who've been denied the same free speech rights that NOM is now enjoying.

Here we go again. On Tuesday, South Carolina Attorney General Henry McMaster notified craigslist CEO Jim Buckmaster that unless craigslist removes its erotic services section within 10 days, "craigslist management may be subject to criminal investigation and prosecution." McMaster's threat comes on the heels of increasingly bellicose rhetoric in recent weeks from other AGs such as Rhode Island AG Patrick Lynch, Illinois AG Lisa Madigan, and Connecticut AG Richard Blumenthal. The case further echos the suit brought by Cook County (Illinois) Sheriff Thomas Dart back in March seeking, among other things, compensation for funds the County spent on combating prostitution.

The AGs would almost certainly lose any such threatened lawsuit.

Craigslist, as previous courts have held, is protected by federal law. Section 230 of the Communications Decency Act, passed in 1996, immunizes providers of "interactive computer service" such as Craigslist -- website operators, ISPs, domain name registrars -- from state criminal liability for content posted by third parties. Under CDA 230, it is irrelevant that such a service might have known about the posts or could have done more to block them. Indeed, one of the explicit rationales for passing CDA 230 in the first place was to protect service providers who wanted to engage in the kinds of self-regulatory measures as Craigslist has already done to help limit access to sexually explicit materials online. As California Representative Christopher Cox noted in support of the future statute, CDA 230 would “protect [online service providers] from taking on liability ... that they should not face ... for helping us solve this problem” as well as establish a federal policy of nonregulation to “encourage what is right now the most energetic technological revolution that any of us has ever witnessed.” The notion that craigslist (and their officers!) should be held responsible for third party content on their site because they didn't do enough to satisfy the individual whims of respective state attorneys general is wholly inconsistent with the law.

In fact, craigslist has gone far beyond their obligations under the law. In November of 2008, craigslist agreed to implement a series of technical and policy changes to curb the use of their site for illegal purposes by third parties, including (among other things) requiring telephone and credit card verification for "erotic services" ads posted on their site, automatically blocking certain ads that it believes may be illegal, tagging adult-oriented ads to help facilitate the effectiveness of parental-screening software, improving its search capabilities in an attempt to help law enforcement to locate missing persons and identify exploited minors and victims of human trafficking, and the like. Even before their November 2008 agreement, according to craigslist, the number of erotic services ads dropped 90% as a result of craigslist's own internal efforts to screen ads that violated their terms of service. Despite these efforts and results, it appears that some of craigslist's governmental critics will remain unsatisfied unless they can control the ad categories offered on the site.

Attorney General Henry McMaster has no case. Neither do AGs Lynch or Blumenthal. And neither does Sheriff Dart, as craigslist explained Monday in their motion to dismiss his March lawsuit. While the AGs may wish it was not so, federal law protects craigslist and no amount of posturing will change that fact.

And that's a good thing. The existence of sites that rely on third party content depends on strong uniform legal protections against liability based on material posted by users. If site operators were forced to screen all third party contributions under risk of civil or criminal penalty, the Internet would lose many of the vibrant services that have made it so dynamic. The problem would be further compounded if, as these state AGs now suggest, each state was able to put together its own wish list instructing website operators how to treat third party content. Under such a radical re-envisioning, the Internet would ultimately become the province of rich and cautious media companies who would actively serve as gatekeepers to decide whether and how users could engage with the world. The AGs are wrong to promote such a profound change... and out of line to suggest that such a legal world already exists.

If we had tried to invent a scenario that would illustrate some of the reasons why we need DMCA exemptions for cell phone "jailbreaking," we could not have come up with a better story than Trent Reznor's recent troubles with Apple's iPhone app store.

Reznor, front man for the band Nine Inch Nails and an innovator in the world of digital music, had the latest version of his Nine Inch Nails-themed application for the iPhone rejected by Apple on the grounds that it contained "objectionable content" — the content in this case being a streaming version of the song "The Downward Spiral," which includes Reznor's usual strong language.

And while we're at it, I'll voice the same issue I had with Wal-Mart years ago, which is a matter of consistency and hypocrisy. Wal-Mart went on a rampage years ago insisting all music they carry be censored of all profanity and "clean" versions be made for them to carry. Bands (including Nirvana) tripped over themselves editing out words, changing album art, etc to meet Wal-Mart's standards of decency — because Wal-Mart sells a lot of records. NIN refused, and you'll notice a pretty empty NIN section at any Wal-Mart.

Actually, it's worse than that. If a customer is unhappy with the limited options at Wal-Mart, she can easily go across the street to another store with a better selection. But in this case, a customer wanting access to uncensored content for her iPhone would have no where else to go, thanks to Apple's policy of locking up the iPhone and blocking all unapproved applications. It's as if Wal-Mart was the only place to buy music.

Or, to use another analogy, imagine buying a car from a dealership. The dealer will probably find all sorts of ways to get more money out of you, but they won't be able to dictate where you drive once you buy the car, or what gas you put it in, or what you listen to on the car stereo. But then Apple hasn't launched it's new iCar yet.

Now, Apple certainly has the right to sell whatever they like through their store (even if it is more than a little absurd for Apple to censor a song they are currently selling, dirty words and all, through their iTunes store). And many iPhone customers may be perfectly happy with the 35,000 applications that have been approved by Apple in the App Store. But the point is that customers who are not satisfied with Apple's inventory should have the option to take their business elsewhere.

As we've pointed out many times in the past, the DRM that Apple uses to lock up content isn't about protecting artists from piracy: it's about protecting Apple from competition.

The White House has recently unveiled its Official White House Photostream on Flickr, posting dozens of stunning photos by official photographer Pete Souza. In posting the photos, the White House chose the least restrictive license available, a Creative Commons Attribution license — which means the public is free to download, copy, and re-mix freely, so long as the original photographer is credited.

While this is certainly better than releasing the photos under the usual copyright rules (no use without permission, specific license and compensation), the license made us wonder: if these are official photos by the official White House photographer, aren't they government works? If so, they aren't copyrightable, which means they needn't be licensed at all, but should instead be flagged as public domain. (All the photos we've looked at were by the official White House photographer; however, to the extent that any are provided by non-governmental third parties, we've no quarrel with the CC-BY license for those.)

So we did a little investigation. As it happens, there is a kind of public domain option on Flickr. Photos in the Flickr streams of other public institution such as the Smithsonian and the Library of Congress are accompanied by text that reads "No known copyright restrictions," with a link to a page explaining that the photo is either public domain or is owned by an institution that is not exercising control over the image.

The White House should reconsider its licensing approach, and work with Flickr to flag these government works in the same way. This Administration is pioneering the use of the Internet to reach out to citizens — and part of the precedent it should set is a clear recognition that publicly funded government works should be free to the public, without the burden of copyright and licensing restrictions.

Flickr, for its part, should open up the "no copyright restrictions" option to the rest of us. As it stands, it appears that is only open to specific institutions. Flickr has been a pioneer in this area, and deserves credit for helping people put Creative Commons licenses to use. We hope they'll consider allowing the public access to the same "non-license" being used by the Smithsonian and other institutions, or at the very least add a public domain license certification to the list of options.